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Exhibit 10.1
INDEMNIFICATION AGREEMENT
AGREEMENT, made this ____ day of ______, 2007, between Jazz
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and
(the "Indemnitee").
W I T N E
S S E T H :
WHEREAS, the Indemnitee is a director and/or officer of the
Company.
WHEREAS, highly competent persons have become more reluctant to
serve corporations as directors or in other capacities unless they
are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of the corporation.
WHEREAS, in recognition of Indemnitee’s need for
substantial protection against personal liability in order to
enhance Indemnitee’s continued service to the Company in an
effective manner and Indemnitee’s reliance on the provisions
of the Company’s Certificate of Incorporation ("Certificate
of Incorporation") and the Company’s Bylaws (the "Bylaws")
requiring indemnification of the Indemnitee to the fullest extent
permitted by law, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such
Certificate of Incorporation and Bylaws will be available to
Indemnitee (regardless of, among other things, any amendment to or
revocation of such Certificate of Incorporation or Bylaws or any
change in the composition of the Company’s Board of Directors
or acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as set forth in
this Agreement.
[WHEREAS, the Company and Indemnitee entered into an
Indemnification Agreement dated ______ , 2003 (the "Prior
Indemnification Agreement"), at which time the Company was a
California corporation.]
[WHEREAS, the Company subsequently reincorporated in the State
of Delaware.]
WHEREAS, the Certificate of Incorporation, the Bylaws and the
General Corporation Law of the State of Delaware ("DGCL") expressly
provide that the indemnification provisions set forth therein are
not exclusive and thereby contemplate that contracts may be entered
into between the Company and members of the board of directors,
officers and other persons with respect to indemnification.
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf of, such persons to the fullest extent permitted
by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so
indemnified.
WHEREAS, this Agreement is a supplement to and in
furtherance of the Certificate of Incorporation and Bylaws and any
resolutions adopted pursuant thereto and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
[WHEREAS, the Company and Indemnitee desire to supersede and
replace the Prior Indemnification Agreement with this
Agreement.]
NOW, THEREFORE, in consideration of the premises and of
Indemnitee agreeing to serve or continuing to serve the Company
directly or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties hereto agree as
follows:
Section 1 . Basis Indemnification Agreement
. (a) In the event Indemnitee was, is or becomes a party
to or witness or other participant in, or is threatened to be made
a party to or witness or other participant in, a Claim (as defined
in Section 9(b) herein) by reason of (or arising in part out
of) an Indemnifiable Event (as defined in Section 9(d)
herein), the Company shall indemnify Indemnitee (including its
respective directors, officers, partners, members, employees and
agents, as applicable) and each person who controls any of them or
who may be liable within the meaning of Section 15 the
Securities Act of 1933, as amended (the "Securities Act") or
Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), to the fullest extent permitted by law as
soon as practicable but in any event no later than 30 days after
written demand is presented to the Company, against any and all
Expenses (as defined in Section 9(c) herein), judgments,
fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection therewith) of such Claim actually and reasonably
incurred by or on behalf of Indemnitee in connection with such
Claim and any federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement. If requested by Indemnitee in
writing, the Company shall advance (within ten business days of
such written request) any and all Expenses to Indemnitee (an
"Expense Advance"). Notwithstanding anything in this Agreement to
the contrary, and except as provided in Section 3, prior to a
Change of Control (as defined in Section 9(a) herein),
Indemnitee shall not be entitled to indemnification pursuant to
this Agreement in connection with any Claim (i) initiated by
Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the
initiation of such Claim, or (ii) made on account of
Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the
law.
(b) Notwithstanding the foregoing, (i) the indemnification
obligations of the Company under Section 1(a) shall be subject
to the condition that the Reviewing Party shall not have determined
(in a written opinion, in any case in which the special independent
counsel referred to in Section 2 hereof is involved) that
Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make
an Expense Advance pursuant to Section 1(a) shall be subject
to the condition that the Company receives an undertaking that, if,
when and to the extent that the Reviewing Party determines that
Indemnitee would not be permitted to be so indemnified under
applicable law, the Company shall be entitled
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to be reimbursed by Indemnitee (who hereby agrees
to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced legal
proceedings in the Court of Chancery of the State of Delaware (the
"Delaware Court") to secure a determination that Indemnitee should
be indemnified under applicable law, any determination made by the
Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any
Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). Indemnitee’s obligation to
reimburse the Company for Expense Advances shall be unsecured and
no interest shall be charged thereon. If there has not been a
Change in Control, the Reviewing Party shall be selected by the
Board of Directors, and if there has been such a Change in Control,
the Reviewing Party shall be the special independent counsel
referred to in Section 2 hereof. If there has been no
determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to
be indemnified in whole or in part under applicable law, Indemnitee
shall have the right to commence litigation in the Delaware Court
seeking an initial determination by the court or challenging any
such determination by the Reviewing Party or any aspect thereof and
the Company hereby consents to service of process and to appear in
any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and
Indemnitee.
Section 2 . Change in Control . The
Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by two-
thirds or more of the Company’s Board of Directors who were
directors immediately prior to such Change in Control) then with
respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnity payments and Expense Advances under this
Agreement or any other agreement, the Bylaws or Certificate of
Incorporation now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from
special independent counsel selected by Indemnitee and approved by
the Company (which approval shall not be unreasonably withheld or
delayed) and who has not otherwise performed services for the
Company within the last five years (other than in connection with
such matters) or for Indemnitee. In the event that Indemnitee and
the Company are unable to agree on the selection of the special
independent counsel, such special independent counsel shall be
selected by lot from among at least five law firms with offices in
the State of Delaware having more than fifty attorneys, having a
rating of "av" or better in the then current Martindale Hubbell Law
Directory and having attorneys which specialize in corporate law.
Such selection shall be made in the presence of Indemnitee (and his
legal counsel or either of them, as Indemnitee may elect). Such
counsel, among other things, shall, within 90 days of its
retention, render its written opinion to the Company and Indemnitee
as to whether and to what extent Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special independent counsel referred to
above and to fully indemnify such counsel against any and all
expenses (including attorneys’ fees), claims, liabilities,
and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
Section 3 . Indemnification for Additional
Expenses . The Company shall indemnify Indemnitee against
any and all expenses (including attorneys’ fees) and, if
requested by Indemnitee in writing, shall (within ten business days
of such written request) advance such
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expenses to Indemnitee, which are incurred by
Indemnitee in connection with any Claim asserted against or action
brought by Indemnitee for (i) indemnification or advance
payment of Expenses by the Company under this Agreement or any
other agreement, the Bylaws or Certificate of Incorporation now or
hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and
officers’ liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined
to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be. The Indemnitee shall
qualify for advances solely upon the execution and delivery to the
Company of an undertaking providing that the Indemnitee undertakes
to repay the advance to the extent that it is ultimately determined
that the Indemnitee is not entitled to be indemnified by the
Company.
Section 4 . Partial Indemnity, Etc. If
Indemnitee is entitled under any provisions of this Agreement to
indemnification by the Company of some or a portion of the
Expenses, liabilities, judgments, fines, penalties and amounts paid
in settlement of a Claim but not, however, for all of the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
Section 5 . No Presumption . For
purposes of this Agreement, the termination of any action, suit or
proceeding by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any
particular belief.
Section 6 . Notification and Defense of Claim
. Within 30 days after receipt by Indemnitee of notice of the
commencement of a Claim which may involve an Indemnifiable Event,
Indemnitee will, if a claim in respect thereof is to be made
against the Company under this Agreement, submit to the Company a
written notice identifying the proceeding, but the omission so to
notify the Com
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